Targeted Killings Symposium: Fernando Tesón Responds to Andrew Altman

by Fernando Teson

[Fernando Tesón is Tobias Simon Eminent Scholar and Professor of Law at Florida State University College of Law.]

This post is part of the Targeted Killings Book Symposium. Other posts in this series can be found in the related posts below.

Andy Altman offers what I see as a friendly amendment to my piece on targeted killings. There I make a few central claims:

1) A state may not declare war on terrorists and then help itself to the tools of warmaking –essentially, the right to kill enemies on sight wherever they are found.  Thus the language of “war on terror” is a dangerous misdescription, because it suggests that government can unilaterally abolish the permissibility of killing persons without any kind of process. I take it Andy concurs.

2) In a “peacetime setting” such as Paris or New York, the state may not kill a terrorist unless it complies with very strict conditions: the killing is necessary to avert a terrorist plot, the terrorist is culpable (in  a sense that I specify), and the government has a just cause (which, according to my definition of “terrorist”, a liberal government always has). Andy does not challenge this.

3) However, following the laws of war, I accept that terrorists may be permissibly killed in a “wartime-setting.”  Andy doubts this, and suggests that all I need is the peacetime standard in (2). He claims that in wartime settings such as Afghanistan all we need is increased governmental cooperation in order to aprehend terrorists. Presumably, this implies that terrorists are after all, private persons, not soldiers, and this makes the “killing-on-sight” standard problematic.  But all I meant by preserving the permissibility of killing in these kinds situations was to acknowledge that sometimes terrorists fight armies in battlefields, even if they don’t wear uniforms.  Recall that the morality of such killings is dependent on the severe strictures of just war theory, including just cause, proportionality (governed by some version of the doctrine of double effect), and the like. Any possibility of abuse I try to fend off by requiring a strict interpretation of what is a wartime setting; thus Abbottabad (certainly no Paris) was not a wartime setting.

4) I offer a new definition of terrorist. A terrorist is a principled evildoer, that is, someone who not only employs immoral means (kills innocents) but also pursues an unjust cause, such as religious domination or whatever. In other words: contrary to conventional belief, a terrorist is not defined only by the immorality of his means, but also by the injustice of his cause.

5) It is never permissible to kill a terrorist (or anyone else) if capture is possible at an acceptable moral cost. Thus, killing an unarmed terrorist who can be captured is murder. In contrast, if the capture of a terrorist would cause the deaths of innocents, killing a terrorist is permissible, provided that the government complies with the conditions already specified.

6) A final point that Andy addresses.  I propose to make targeted killing illegal in principle, given the general objections to the practice, in particular the epistemic objections that burden governments (such as assessing the necessity requirement, mistaking targets, etc.) I accept, however, that in the cases where the killing is justified, the highest authority in the land must explain the justification to the citizenry. Andy says this is unrealistic, and of course he is right, at least as governments continue to be obsessed with secrecy. However, all I can do as an academic is to sketch ideal conditions. A liberal government must defend itself from this scourge, but it must do it as close as possible to the rule of law and the respect of the moral rights of persons.

Targeted Killings Symposium: Andrew Altman Comments on Fernando Tesón’s “Targeted Killing in War and Peace: A Philosophical Analysis”

by Andrew Altman

[Andrew Altman is Professor of Philosophy, and Director of Research for the Jean Beer Blumenfeld Center for Ethics, at George State University.]

This post is part of the Targeted Killings Book Symposium. Other posts in this series can be found in the related posts below.

In his contribution to Targeted Killings, Fernando Tesón argues that the threat posed by terrorism is sui generis and cannot be adequately addressed by either a pure law-enforcement or a pure armed-conflict model.  The law-enforcement model is inadequate “[b]ecause the terrorist threat is ubiquitous, the threatened harm is great, and the terrorist is committed as a matter of principle to perpetrating the harm (424).” Yet, Tesón resists the idea that liberal states are in global war with terrorists and rejects the armed-conflict model, because it entails the conclusion that “terrorists are enemy combatants who can be killed on sight regardless of the threat they actually pose” (424).  The conclusion is unacceptable for Tesón, because it fails adequately to reflect the liberal commitment to due process of law.  His solution is an effort to split the difference between the two models.

Terrorists who are to be found in a “wartime setting” (420), such as exists Afghanistan and Somalia, are in a state of war with liberal states, according to Tesón, and are permissibly targeted with lethal force.  But a terrorist in Paris or New York is in a “peacetime setting,” it is morally prohibited to kill him on sight, unless the killing is “necessary to prevent the death of a substantial number of innocents,” the killing is carried out for a “just cause,” the terrorist is culpable, and capture is “impossible or prohibitive” (423).  Tesón acknowledges that the line between a peacetime and wartime setting “is often difficult to draw,” (421) but he argues that the idea of a wartime setting “should be interpreted narrowly” and is even prepared to accept that Osama bin Laden’s killing took place in a peacetime setting (430).  In a wartime setting, “the ordinary tools of crime control cannot operate” (420)  because the condition is essentially a state of nature, in contrast to a peacetime setting in which “there is an actual sovereign … who … can use the standard tools of crime control” (420).  Because states are prone to mistake in determining when a killing is necessary and because, regardless of its possible good consequence, the practice of targeted killing in a peacetime setting amounts to a violation of the liberal rule of law, Tesón argues that there should be a legal ban on such killing, unless the highest executive authority publicly waives the ban and, at least after the killing has been carried out, “fully explain[s] to the citizenry” (433) its reasons for doing so.
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Targeted Killings Symposium: John C. Dehn on Richard Meyer and Col. Maxwell on Status-Based Targeting

by John C. Dehn

[John C. Dehn is a nonresident senior fellow in West Point's Center for the Rule of Law. The views presented here are his personal views.]

This post is part of the Targeted Killings Book Symposium. Other posts in this series can be found in the related posts below.

Let me first congratulate Claire Finkelstein, Jens Ohlin, and Andy Altman for compiling wonderfully diverse thoughts on an intellectually rich topic.  My only regret is that circumstances prevented me from contributing to it despite an invitation to do so.

Colonel Maxwell’s chapter in Targeted Killings is an excellent contribution to the ongoing debate regarding the targetable status of individuals in non-international armed conflict (NIAC).  In my view, Rich Meyer’s critique identifies an appropriate weakness in it, but addresses it in the wrong way.

Both Maxwell and Meyer fail to address the import of the international legal threshold for NIAC.  Maxwell notes the shift from a law enforcement/human rights to law of war legal framework in the U.S. response to terrorism.  But he does so without addressing the (ambiguous in both substance and application) international law that attempts to delineate the circumstances under which terrorist violence might become “hostilities” in a NIAC.  Meyer senses this problem, classifies it as a “jus ad bellum” issue, but then characterizes it as a “collective political decision” rather than a legal issue (effectively extracting most of the jus from the jus ad bellum).  The decision to attack an extraterritorial non-state organized armed group is probably a political question under the framework of the U.S. Constitution, but is not so from the perspective of international humanitarian and human rights law.

Nevertheless, Meyer’s point regarding Maxwell’s lack of clarity in assigning responsibility to determine the existence of a NIAC is well taken.  However, I read Maxwell to assume the existence of a NIAC so that he may get on with the work of addressing ambiguity in the law regarding individuals with targetable status. Additionally, Meyer’s assertion about the relationship of the jus ad bellum and jus in bello to the individual culpability of soldiers seems to be more argument than law.  It is relatively clear, I think, that not every “collective political decision” to wage war against an identifiable armed group immunizes any military subordinate who attacks the group if it should (objectively) have been considered legally protected from attack.

I think the real problem with Maxwell’s proposal is his “military function” criterion. Maxwell would include those whose activities establish a continuous combat, combat support, or combat service support function for a non-state armed group as targetable member of that group.  That it is probably too broad.  For example, the U.S. employs many Department of Defense civilian employees and civilian contractors to perform various logistics and combat support functions in the theater of operations, from arming and maintaining drones to feeding and housing troops to protecting civilian government officials.  Although it once performed these functions (almost exclusively) with members of the armed forces, to my knowledge it considers most if not all of these individuals to be civilians (some of which may take a direct part in hostilities), not belligerents. Under Colonel Maxwell’s proposal, most if not all could be targeted as belligerents if supporting non-state organized armed group in similar fashion.  Thus, it is not only terrorists who have blurred the distinction between belligerent, protected civilian and targetable civilian (meaning one taking a direct part in hostilities).

Targeted Killings Symposium: Richard Meyer Comments on Col. Maxwell’s “Rebutting the Civilian Presumption: Playing Whack-A-Mole Without a Mallet?”

by Richard Meyer

[Richard Meyer is Director, LLM Program, at the Mississippi College School of Law.]

This post is part of the Targeted Killings Book Symposium. Other posts in this series can be found in the related posts below.

In his chapter in Targeted Killings, Col. Mark “Max” Maxwell sets out to solve the gaps left by the ICRC guidance concerning continuous combat function.  His proposal attempts to analogize the terrorist organization to the traditional state and, as a result, find that members of their military arm be treated just like those of the uniformed member of a state’s military.  Maxwell argues that the true message of the ICRC guidance is a return to status based rather than mere conduct based targeting of certain civilians.  Just like the uniformed military, if they are a member of the armed group engaging in hostilities, they can be targeted based on their membership in that group without ever having engaged in hostilities personally.  His three pronged test can be summed up as:  1) determine if a armed group that is engaging in hostilities exists; 2) Using a “totality of the circumstances” analysis, determine if the intended target is a member of this group; 3) Attacks must minimize civilian casualties.  This is certainly a more workable and pragmatic paradigm for the uniformed military than Melzer’s argument that only after an individual has engaged in hostilities (on multiple occasions?) can his continuous targetability be determined.  Further, Maxwell’s chapter serves as an excellent primer on the current confusing paradigm of targeted killing caused by the conflation of human rights law and international humanitarian law.  His desire to evolve IHL is certainly a step in the right direction.  I have one objection to his proposal.

Following the bad example of the AUMF, Maxwell’s proposal conflates the entirely segregable legal realms of jus ad bellum and jus in bello.  During WWII, the US declared war on Germany, Japan & Italy.  Thus the armed forces of those three countries, and only those three countries, were targetable on sight by American military forces.  Hypothetically, even if Spanish uniformed military forces were actively providing combat support services to the German military or were proven to have actually sent planes and participated in the attack on Pearl Harbor, the American Soldier, from Private Smith to General Eisenhower did not have legal authority to engage those forces except in self-defense.  Thus, only after the state’s jus ad bellum decision identifies the macro enemy can the combatant’s jus in bello determination identify the individual target.  This is a corollary to the long held principle of the law of war that the merits of a jus ad bellum decision do not alter the legal culpability of a jus in bello act in compliance with that decision.  Said another way, the otherwise eviscerated “following orders” defense is alive and well as it relates to the decision to go to war.  This is necessary, lest the members of a state’s military individually bear the legal culpability for a collective political decision.

In an effort to facilitate a conflict with a nontraditional opponent, the AUMF did not identify a status based macro enemy, (e.g. the State of Germany) but instead identified a conduct based “…nations, organizations or persons the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11,2001.”  This declaration delegates to the President, in his role as the Commander-in-Chief and (by potential further delegation) the military commander the power and responsibility to make both the jus ad bellum and jus in bello decisions.  Constitutional separation of powers issues aside, if the soldier has any role (other than as a voter or advisor) in the jus ad bellum decision, this severely undercuts the legal and moral justification that soldiers should not be held accountable for collective jus ad bellum decisions.  The soldier is protected from liability because the choice to go to war was not his to make… until now.  Paralleling this error, Maxwell creates a three-pronged analysis that also intermixes jus ad bellum and jus in bello decisions.  The first prong of Maxwell’s analysis requires the finding that there is an organized armed group engaging in combat with the state.  At first blush, it appears that Maxwell presupposes the existence of an armed conflict.  Armed conflicts however, currently require two competing macro entities (be they states or non state groups).  Thus, if the first prong is answered in the negative and there is no such armed and organized group “combating the state,” then there is no armed conflict; IHL does not apply and we are locked into the law enforcement paradigm.  Conversely, if there is such a group, the state might have the option of engaging that group under IHL.  Thus, prong one appears to be within the legal realm of jus ad bellum.  Prongs two and three, however, are both the jus in bello determinations of verification of status (for a status-based attack) and minimizing collateral damage/deaths.  Maxwell could argue that this is parallel to the traditional paradigm.  As noted, in that, the state makes the jus ad bellum decision and individuals make the jus in bello decisions, providing the latter with protection from legal responsibility for the former.  However, Maxwell assigns all three decisions to the collective state and none to the individual combatant.  In theory, this would place the legal culpability for all three decisions on the collective state and none on the individual, which would be a return to a near full-fledged following orders defense.

At first blush, this appears to be semantics… Perhaps Maxwell used the term “state” to refer to both the collective and to the individual determinations of its military.  This does not actually solve the conflation issue however, because the first prong also involves currently simultaneous jus ad bellum and  jus in bello determinations.  To illustrate this point, I will divide his first prong into what I believe are the appropriate four steps contained within it.

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Targeted Killings Symposium: Jens David Ohlin Responds to Craig Martin

by Jens David Ohlin

[Jens David Ohlin is an Associate Professor of Law at Cornell Law School; he blogs at LieberCode.]

This post is part of the Targeted Killings Book Symposium. Other posts in this series can be found in the related posts below.

In his comments to my chapter “Targeting Co-Belligerents,” Craig Martin asks a very pertinent question: Is the US really in an armed conflict with al-Qaeda?  Or, more abstractly, can a state ever be in an armed conflict with a non-state terrorist organization?  Martin is correct to assume that an affirmative answer to this question is necessary before any of the in bello linking principles are used in my analysis.

Although this is an issue that I largely cabined from my argument in the chapter, it is now a question that very much animates my current research.  Here is my thinking:  At least part of the skepticism regarding the existence of an armed conflict with AQ or other NSAs, stems from an uncertainty regarding classification.  The armed conflict allegedly cannot be a non-international armed conflict (NIAC) because it crosses international boundaries.  On the other hand, though, it cannot be an international armed conflict (IAC) because one of its parties is not a traditional state actor – presumably a condition-precedent for any IAC.  It not falling into either sub-category, it cannot be an armed conflict at all.

I find this argument suspicious, though my thinking on the issue is still evolving.  I am not quite clear on the supposed legal evidence for the proposition that IAC and NIAC occupy the entire field of the concept of armed conflict.  That’s only true when the concepts are defined in opposition to each other (where NIAC would simply refer to anything that is not a traditional IAC).  That was the style of analysis that the Supreme Court used in Hamdan, and that led them to conclude that the armed conflict against AQ was indeed a NIAC.  I found this argument persuasive.

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Targeted Killings Symposium: Craig Martin Comments on “Targeting Co-Belligerents” by Jens David Ohlin

by Craig Martin

[Craig Martin is Associate Professor of Law at Washburn University School of Law, and author of another of the chapters in Targeted Killings]

This post is part of the Targeted Killings Book Symposium. Other posts in this series can be found in the related posts below.

Jens Ohlin’s chapter in Targeted Killings, Targeting Co-Belligerents,” provides an important analysis of one of the key questions in the targeted killing debate, and makes a persuasive argument in favor of one possible response to it. In doing so, however, I wonder if it leaves another fundamental question hanging, which I lay out below for him to address. First, however, let me provide a sketch of his argument.

Jens begins by noting how the US targeted killing policy, and the transnational terrorism against which it is directed, raises difficult questions regarding which legal regime should be controlling. Not only is there an ongoing debate as to whether responses to terrorism should be governed by domestic criminal law within a law enforcement paradigm, or public international law in the context of armed conflict, but even for those who accept the armed conflict paradigm there are debates over whether the principles of jus ad bellum or jus in bello are best suited to justify the targeted killing.

Against that backdrop, and assuming for the sake of his analysis that some targeted killing will be permissible in some circumstances, Jens addresses the question: “who can be targeted and why?” His stated objective is to investigate “the tension between national security and civil liberties through a distinctive framework: what linking principle can be used to connect the targeted individual with the collective group that represents the security threat?” As he explains, regardless of whether one approaches the problem from a jus in bello or a jus ad bellum perspective, the problem of linking the individual targeted to some collective is an essential step in the justification process.
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Targeted Killings Symposium: Introduction

by Jens David Ohlin

[Jens David Ohlin is an Associate Professor of Law at Cornell Law School; he blogs at LieberCode.]

In April 2011, a group of legal scholars gathered at the University of Pennsylvania Law School for a conference on targeted killings.  The idea was to bring together experts in diverse fields – international law, legal and moral philosophy, military law, and criminal law – into a single (or perhaps overlapping) conversation about the legality and morality of targeted killings.

The outgrowth of that conference, Targeted Killings: Law and Morality in an Asymmetrical World (edited by Claire Finkelstein, myself and Andrew Altman), has just been published by Oxford University Press.

This Opinio Juris symposium is designed to continue the conversation first raised by the volume, but with Opinio Juris’ wider audience.

First, Craig Martin comments on my chapter, “Targeting Co-Belligerents,” followed by my response.  Our exchange concentrates on whether an armed conflict exists with al-Qaeda.

Next comes a comment by Richard Meyer on Col. Mark Maxwell’s chapter, “Rebutting the Civilian Presumption: Playing Whack-A-Mole Without a Mallet?”  In lieu of a response from Maxwell, who is currently unavailable, John Dehn provides a response to some of the issues raised by Meyer.

Finally, the symposium ends with a comment by Andrew Altman on Fernando Tesón’s chapter, “Targeted Killing in War and Peace: A Philosophical Analysis,” followed by a response from Tesón.

Thank you to the editors at Opinio Juris for this opportunity.  All Opinio Juris readers are welcome to use the comment section to respond to any of the arguments raised in the symposium.